Instant Analysis: Perry v. Schwarzenegger (Prop 8 Case)

My instant reaction? This opinion will make a lot of law professors who write about gender equality quite happy.

The Court considered whether the right of same sex couples to marry is fundamental under the Washington v. Glucksberg framework–which is the framework for recognizing unenumerated rights:

To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted “in our Nation’s history, legal traditions, and practices.” Glucksberg, 521 US at 710. Here, because the right to marry is fundamental, the court looks to the evidence presented at trial to determine: (1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise

Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. FF 20, 34. The spouses must consent to support each other and any dependents. FF 34-35, 37. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. FF35-37. The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life. See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun, J, dissenting).

Relying on Lawrence v. Texas and Griswold, the Court found that marriage was never tied to procreation:

“[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Lawrence, 539 US at 567. The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship. See Griswold, 381 US at 485-486.

In short marriage has evolved from the old, antiquated state where a married woman was subsumed into a common law fictional relation to the present where both spouses are equals. The time is now to correct this.

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

…

Gender no longer forms an

essential part of marriage; marriage under law is a union of

equals.

Walker also rejects the notion that the plaintiffs are seeking a “new right.”

To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

This argument only works because Walker broadly defines marriage without reference to gender:

﻿The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.

The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples.

Domestic Parternships do not equal Marriage.

The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs. FF 52-54. The record reflects that marriage is a culturally superior status compared to a domestic partnership. FF 52. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to samesex couples.

I’m not quite sure what “due process obligations” are not met here. This reasoning seems a bit ipse dixit, and seems more like an equal protection argument than due process.

After characterizing the right as “fundamental,” the Court applies strict scrutiny–relying on arguments from the proponents of Prop 8, as the State did not advance any arguments–the Court finds that Proposition 8 is not narrowly tailored to serve a compelling government interest. The entire strict scrutiny argument takes up a paragraph:

The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” Doc #159-2 at 6. Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

The meat of the opinion sounds in Equal Protection. The Court relies on Romer v. Evans style rational basis “plus bite” rational basis review. With this analysis the Court finds that sexual orientation discrimination is a form of sex discrimination.

The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” Doc #159-2 at 6. Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

Walker argues that this is patent discrimination based on sexual orientation, which finds protection from Lawrence, as well as Justice Ginsburg’s curious dicta in Christian Legal Society v. Martinez (at the time Adam Liptak speculated whether this would be relied on the same sex marriage context):

Those who choose to marry someone of the opposite sex ——heterosexuals —— do not have their choice of marital partner restricted by Proposition 8. Those who would choose to marry someone of the same sex —— homosexuals —— have had their right to marry eliminated by an amendment to the state constitution. Homosexual conduct and identity together define what it means to be gay or lesbian. See FF 42-43. Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42- 43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt 2971, No 08-1371 Slip Op at 23 (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”) (June 28, 2010) (citing Lawrence, 539 US at 583 (O’Connor, J, concurring)).

Prop 8 targets people because of their sexual orientation, which is equivalent to discrimination based on sex.

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

In an odd twist, Walker holds that strict scrutiny applies, but proceeds to consider rational basis review. This would seem to tell me he wants to cement this case on appeal if the 9th Circuit or SCOTUS finds rational basis applies. But he still got his 2 cents in, holding that strict scrutiny applies in the event the 9th Circuit (but not SCOTUS) finds strict scrutiny covers.

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

Relying on Lawrence v. Texas and Casey, Walker rejects the notion that majorities can enforce morality on others through the power of a ballot initiative.

The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. 539 US at 571. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.” Id (citing Planned Parenthood of
Southeastern Pa v Casey, 505 US 833, 850, (1992)). “[M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation. Lawrence, 539 US at 582 (O’Connor, J, concurring). Tradition alone cannot support legislation. See Williams, 399 US at 239; Romer, 517 US at 635; Lawrence, 539 US at 579.

Walker continues to find that opponents of same sex marriage likely think that opposite-sex couples are “morally superior” to same-sex couples.

The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. FF 79-80. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians.

In conclusion, Walker writes:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that oppositesex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

http://Website Alan

Should your opening statement be changed from: “The Court considered whether the right of same sex couples to marry is fundamental…” to: Does a law preventing same sex couples from getting married, violate their fundamental right to marry the person of one’s choice. The Judge doesn’t believe that the plaintiffs wanted the court to recognize some new right to SSM, because the plaintiffs wanted the same that straight couples have to be applied to them. Your opening statement seems to contradict this. Sorry to sound nitpicky, but it just seems like a crucial distinction.

Josh Blackman

I think you may be right. This opinion is still bothering me from a constitutional law perspective. The due process and equal protection arguments really overlap, perhaps unavoidably so. I think in order to say that same sex-marriage and opposite-sex marriage are the same right, you need to rely on equal protection. But he grounds this in due process, relying on Loving and Griswold. I know he doesn’t want to recognize a new right, but unless equal protection shows that these two rights are the same thing, invariably he would have needed to do a substantive due process analysis showing why this liberty interest is fundamental. I don’t know. Maybe I’m wrong. The due process argument just seems much weaker than it should be.

http://Website Alan

There definitely is an overlap. I guess the plaintiffs wanted to make as many arguments as they possibly could in their favor.

If a state denies some fundamental right to everyone, then it’s a due process issue. If a state discriminate against a particular group, but it doesn’t involve some right, it’s an equal protection issue. And if they discriminate against some group by denying them a right that they afford to others, then it raises due process and equal protection issues. But it seems like in order to prove that Prop 8 violated equal protection Walker had to prove that the right of same sex couples to marry was fundamental. But he could have just left the equal protection issue alone and said simply that Prop 8 violated the couples fundamental right to marry. Perhaps the argument could have had better reasoning. I am likewise confused.

Josh Blackman

Loving supports the fundamental right to marry–that is how it was historically defined, as between a man and a woman. I mostly agree with Walker’s arguments that marriage has evolved so it no longer represents the gendered roles that the institution imparts. So in that case, does Loving outright support same-sex marriage? I don’t think you can read Loving that way. He also relies on Glucksberg. Glucksberg Step 2, which is usually fatal, requires a narrow definition of the right. Walker defined marriage SO broadly.

If he would have started and said prop 8 violates equal protection, from there he could have said therefore Loving implicitly endorses SSM, therefore it is a fundamental right, therefore strict scrutiny, therefore qed.

One last q. If sexual orientation discrimination is sex discrimination, why no VMI-esque intermediate equal protection scrutiny? His application of rational basis still confuses me.

http://Website Tom

Thank you for teasing out the skeletal structure of the legal opinion.

You may be right that there is an overlap in argumentation between due process and equal protection. From my perspective, they are necessarily overlapped/integrated, with the latter hierarchically more primary than the former. Equality under law is the substantive content from which due process is the objective means.

http://Website Alan

Good question. He also says that strict scrutiny is the appropriate standard of review at one point. It’s like he covers all the levels of review except the one that is supposed to actually apply in cases dealing with sex discrimination. I honestly don’t know.

http://Website steve rappoport

I am going to copy an updated version of the comment that I tried to make here yesterday but that your site did not allow at the time:

——-
I have not read the opinion yet, but can you explain how the judge had the authority to reach the result he did given the U.S. Supreme Court’s dismissal, in Baker v. Nelson (1972), of an appeal from the Minnesota Supreme Court, which had rejected a claim that denial of a marriage license to two men was unconstitutional. The dismissal was for want of a substantial federal question, which was a ruling on the merits. A lower court is supposed to follow the U.S. Supreme Court if the Court has ruled on an issue, even if the lower court is convinced that the Supreme Court would overturn that ruling in an appropriate case.

Josh Blackman

Steve, I haven’t read Baker v. Nelson so I cannot answer your question. Though I posed and answered some of the questions Alan discussed in this post http://joshblackman.com/blog/?p=4967

http://Website steve rappoport

There was no opinion, just a sentence stating what I posted. The rule at that time that appeals (not petitions) from the highest court of a state were within the mandatory jurisdiction of the Supreme Court; if it did want to hear argument, it would dismiss the appeal, but that dismissal was on the merits. The rule was changed sometimes in the 1970s, I believe, to shrink the Court’s mandatory jurisdiction severely.

Josh Blackman

Compare Judge Easterbrook’s in McDonald with Judge O’Scannlain’s opinion. Easterbrook said it was not the role of the Circuit (and presumably district) court to predict how the Supreme Court would rule on an issue if there is a previous controlling precedent. That constraint did not bother Judge O’Scannlain as he found for incorporation, notwithstanding SCOTUS precedents that said the 2nd amendment should not be incorporated. Your guess is as good as mine.